Appellant was convicted, without a jury, of one count of possession of a controlled substance with intent to deliver.*fn1 He argues that his conviction should be reversed because the cocaine taken from him was the fruit of an illegal arrest and should therefore have been suppressed. In the alternative, he contends that if we find that the cocaine was seized not pursuant to arrest, but rather during a "stop" we ought then to conclude that it was taken during a search that exceeded the permissible limits of such searches. He also challenges the sufficiency of the evidence. Because we find that cocaine was seized from appellant pursuant to an illegal arrest, we reverse.

The factual circumstances relevant to this appeal are as follows.

At six a.m. on April 7, 1980, two Allegheny County policemen responded to a radioed message that two men, one of whom had a gun, were in a nearby 7-Eleven Store. Within a few minutes, the officers entered the store where they encountered appellant standing near the door. Appellant told the officers that he was "waiting for [his] buddy, who was buying munchies." A store clerk told one of the officers that the other non-employee, "the shorter man with the sweater," had the gun. The officer noticed a lump

[ 313 Pa. Super. Page 4]

protruding from the man's sweater and removed a gun. Both appellant and the man with the gun were taken outside. During a pat-down search outside the store, a sock containing cocaine was seized from appellant.

Mr. Hook contends that he was under arrest when he was led out of the store. The Commonwealth, on the other hand, contends that he was not arrested until the cocaine was found. It is the Commonwealth's position that until that time, Mr. Hook was detained during an investigatory "stop."

It is clear that police may detain a person briefly without having probable cause to arrest him. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer could constitutionally stop a pedestrian for investigatory purposes and conduct a reasonable search for weapons for the protection of the police officer where he has reason to believe that he is dealing with an armed and dangerous individual. Such a stop may be made regardless of whether the officer has probable cause to arrest the individual for a crime. The court said, "the officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27, 88 S.Ct. at 1883. See also Commonwealth v. King, 247 Pa. Super. 443, 372 A.2d 908 (1977).

Our review of the arresting officers' testimony at the suppression hearing leads us to conclude that prior to the seizure of the cocaine, appellant had been arrested and not merely stopped.

Officer Stiger, the senior officer, did testify that when Mr. Hook was led out of the store he was not free to leave.

[ 313 Pa. Super. Page 5]

Although the limitation of one's freedom can certainly be an indication that a person has been arrested (see e.g. Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974), the officer's subjective view that appellant was not free to leave is of no moment absent an act indicating an Page 5} intention to take appellant into custody. See Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978) (emphasis added).

Arrest has been defined as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

The testimony of Officer Casey indicates that the officers did intend to take Mr. Hook into custody prior to the discovery of the cocaine. At the suppression hearing, the officer described what occurred outside of the store when McCandless Township Police arrived. Mr. Hook had not yet been frisked and a McCandless Officer approached Officer Casey who testified as follows.

I was still on face with him. I had him right in front of me, and Lieutenant VanLeer came out with it. He said was this guy under arrest; is he being held? I says, "Yes, he's being detained, also." He said, "Has anybody patted him down," and I said, "Yes, we are taking him, and he has to be patted down." You don't put anybody in a police car that isn't patted down.

In a recent decision, our Supreme Court held that a person who is transported in a police car after a "pat-down" search albeit for investigatory purposes, has been arrested and not merely "stopped." In Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), the court rejected the Commonwealth's argument that the appellant's seizure without probable cause to arrest could be justified as an investigatory "stop." The court noted that the Terry principle is an exception to the general rule requiring probable cause to arrest. The court emphasized that the exception must not be extended in such a fashion as to swallow the rule (slip opinion at 10). Given the evidence that the officers intended to take Mr. Hook into custody prior to the cocaine discovery, we must find that he was under arrest prior to the frisk. This conclusion is especially called for in view of Lovette, supra.

[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed "arrests" or "investigatory detentions."

498 Pa. 675, 450 A.2d at 980.

We reach this decision aware that it would have been permissible for the officers to detain Mr. Hook for an investigatory "stop." Mr. Hook and his companion were in a store at 6 a.m. when his companion was found to have a gun. The officers might have reasonably believed that criminal activity was afoot and proceeded to stop Mr. Hook to investigate. See Terry, supra; Commonwealth v. Trenge, 305 Pa. Super. 386, 451 A.2d 701 (1982). Under such circumstances, a limited search for weapons would have been permissible. See Commonwealth v. King, 247 Pa. Super. 443, 372 A.2d 908 (1977).

However, in the present case, the officers indicated their intention to take Mr. Hook into custody and subject him to their control before they had probable cause to arrest.

Prior to the search, the officers lacked probable cause to arrest Mr. Hook for any crime. His companion was arrested for illegal possession of a firearm. No robbery had been attempted, nor was there evidence that such a crime was planned. Mr. Hook's only involvement, prior to the cocaine discovery, was as the companion of a person who himself possessed a firearm. While he could reasonably be investigated, Mr. Hook could not be arrested simply for being in the company of the arrested man. Therefore,

[ 313 Pa. Super. Page 7]

we must conclude that Mr. Hook's arrest, made prior to the cocaine discovery, was without probable cause.

We are forced to conclude that the lower court erred in not suppressing the cocaine.

Whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently ...

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